Defamation

These notes were prepared in June 2009. They are intended as general information not specific legal advice. If you want legal advice about a particular problem, you can contact me here.

What is defamation?

The publication of a statement about someone that lowers him or her in the estimation of right-thinking members of society generally, where no defence (usually truth, opinion, or qualified privilege) is available. The defences are dealt with below.

In English?

A rough rule of thumb: something you wouldn’t want said about you

What are some examples?

Calling someone dishonest, corrupt, hypocritical, lazy, incompetent, criminal, unfaithful, or financially troubled. But beware! It includes what ordinary readers or viewers see or hear “between the lines”. The courts will look at the “sting” of the article. Proving the literal truth of the words won’t help if the sting is an inference.

For example, imagine I wrote that you often visited brothels. I may be able to prove this is true. You may visit brothels every day, making deliveries of wine. But that’s not what readers will think, is it? They will read between the lines and gather that I’m saying you frequently sleep with prostitutes. This is the “sting” of the article. It might be quite defamatory, especially if you are married or strongly religious.

Sometimes journalists and others try to get clever with words, hinting and implying things, thinking they are safe because they can prove the literal truth of the words. Wrong. What they have to prove is the meaning that ordinary readers take from their story.

But what if the publisher didn’t intend that meaning?

It doesn’t matter. What matters is what ordinary readers or viewers will make of it. When Metro magazine jokingly described a gossip columnist as “permanently pssst”, for example, a jury felt this suggested she was regularly drunk and awarded damages.

Is a story safe if it doesn’t refer to people by name?

Not necessarily. Identification can also lie under the surface. Just because a story doesn’t mention someone by name doesn’t mean that person can’t sue for defamation. If ordinary readers familiar with the person understand the article to be referring to him or her, that will be enough.

For example, if a newspaper accuses a company of fraud or a government department of waste, it is possible that ordinary readers will take this to reflect on key decision-makers in those organisations.

What if a group of people is accused of misconduct?

Can each member of the group sue? It depends. The question is: will readers or viewers understand the accusation as relating to the individual (perhaps equally with the others)? This depends on the size of the group and the inclusiveness of the language.

For example, if a television report asserts that “one official” at a company took a bribe, and the company has only four officials, they could each argue that the allegation reflected on them. If it had a hundred, they couldn’t. In general, for groups bigger than about a dozen, it may be difficult for courts to find that an accusation
against one person reflects on all.

On the other hand, if the language is more inclusive, the range of people who can sue expands. For example, our station accuses “government ministers” of “having their hands in the till”, the accusations will probably be taken as reflecting on each individual minister.

Still, there are limits. If the report accuses “all doctors” of exploiting patients, the group is too wide for individual doctors to say people will think it relates to them.

What if the publisher didn’t intend to refer to that person?

If the publisher names someone as responsible for a crime, for example, what if some readers think it is referring to someone else who happens to have the same name? The answer: the publisher liable for defamation, even if it had no idea the other person existed.

What’s “innuendo”?

“Innuendo” has a special legal meaning. Sometimes a story will look completely
innocent to most people, but it may carry a barb that is understood by some of the
audience. For example, it may appear harmless to say that John Smith doesn’t recycle waste paper. But if some people know that Smith is an environmental activist, the story will suggest to those people that he is a hypocrite.

So what needs to be shown to prove “publication”?

That the publication was conveyed to at least one other person. It doesn’t have to have been published in a newspaper or broadcast. It doesn’t need to have been recorded or written down.

Does it include publication on the internet?

Yes.

Who’s liable?

All the people involved in producing the story: the author, the editors, the publishing organisation, and the sources if the defamatory quotes came from them.

What if the publisher just reporting what someone else said?

The rule is: whoever reports it is liable for it. Even if it’s from an apparently reputable and knowledgeable source, such as the police. The publisher has to prove the truth of the sting of the article, remember. That’s what the readers or viewers will take it to mean. It’s not enough for the publisher to prove that it has reported the accusation accurately. It must be able to prove that the accusation itself is true.

What if the publisher writes “alleged”?

This is just a fancy way of saying “I’m reporting what someone else has said” – so the same answer applies. Sprinkling a story with the word “alleged” or “rumoured” doesn’t insulate the publisher from a defamation lawsuit. The publisher is still passing on someone else’s allegation or gossip.

Does this mean that radio stations are liable for what guests or callers say on live television or radio talkback?

Yes. Surprisingly, there are few such lawsuits against broadcasters, even in the inflammatory talkback arena.

What if the publisher is reporting about suspicions?

This is a very tricky area. The precise meaning of what was said will often be contested. Courts may take a report of suspicions to convey an impression of guilt. More subtly, they may find that the report suggests there are “reasonable grounds” for believing or investigating wrongdoing. In that case, the publisher wouldn’t have to prove guilt, but would have to prove there is good reason to suspect guilt.

Can humour be defamatory?

Yes. Humour, satire, sarcasm, cartoons and spoofs that make fun of people can be defamatory, by holding people up to ridicule unfairly. But it can be difficult to predict whether a court will say “although dressed up as a joke, the barb is defamatory and damaging” or “no-one would take this seriously, it’s obviously just a bit of fun”. Decisions have gone both ways.

Is it defamatory to falsely suggest that someone is gay?

Although social standards are changing, this is still likely to be regarded as defamatory. At the very least, by wrongly calling someone gay, a publisher is almost certainly also effectively accusing them of lying to their friends and partners.

Can a dead person be defamed?

No. But coverage about the wrongdoing of a dead person that reflects badly on friends or associates who are still alive may defame them.

Can corporations sue?

Companies and other corporate bodies can sue for defamation, but only if they can show that it has caused them (or is likely to cause them) financial loss.

What are the defences to a defamation lawsuit?

The main ones are truth, honest opinion and qualified privilege.

How does the defence of truth work?

The publisher will succeed with a defence of truth if it can prove, on the balance of probabilities, that the story was true. Minor errors may be excused, but not those that go to the heart of the defamatory sting or stings.

Even when a story is true, however, it can sometimes be hard to prove. Promises of confidentiality may have been made to key sources. Truthful witnesses may be unconvincing. Documentation may be hard to verify as authentic. What’s more, there are often arguments about exactly what the publication means.

What if a source provides an affidavit verifying the facts in the story?

These are not Holy Scripture. They are helpful in formally recording what a source believes, but they don’t convert the source’s information into bulletproof facts.

What is honest opinion?

This defence used to be called “fair comment”. It allows the media others to express opinions, even though they may be critical of someone and harmful to their reputation. The idea is that opinions are matters of evaluation, not truth, so readers can decide whether they agree or not. This defence can protect editorials, blog posts and comments, letters to the editor, reviews, cartoons, talkback, op-ed pieces, and the like. But there are rules. The opinions must be:

clearly comment, not assertions of fact

based on provable facts set out or referred to in the story and

honestly believed.

Can honest opinion protect speculation about facts?

Yes, but only if it is carefully phrased. The problem is, speculation about facts can often look an awful lot like an assertion of facts. “I think the Prime Minister murdered the nun” will very probably be treated as an assertion of fact not opinion. And an assertion of facts can only be defended by proving their truth.

A story that does not clearly set out the facts that the speculation is based on, separate what is known from what is speculative, and clearly indicate that the where it is being speculative runs the risk of losing this defence. “The Prime Minister’s fingerprints are on the knife that was used to kill the nun; he was alone with her shortly before she died; and he knew she was about to reveal their affair to the nation; all of which leads me to think that the Prime Minister murdered the nun” might be protected by honest opinion (as long as the facts are accurate), even if it turned out that the Prime Minister did not murder the nun.

What is privilege?

Some statements are protected against liability for defamation even though they are
false and harmful. Parliament and the courts recognise that some speech is so important to society that we can’t have people worrying about being sued for it. So the law protects what it calls “privileged” statements. The classic examples are statements made by MPs on the floor of the House of Parliament, and witnesses in court proceedings. They cannot be sued for their statements, even if they are defamatory.

There are two main branches of privilege. The first comes from statute law. The Defamation Act contains protection for reports about particular events and occasions (court hearings, Parliament, public meetings, government inquiries, etc). This means that the publisher has a defence even if it’s repeating something that was said at the meeting, etc, that was defamatory – but generally only if the story is fair and accurate and made in good faith. In some cases, the story must also relate to a matter of public interest, and the publisher must be prepared to run a right of reply.

The second branch comes from the common law. In general, this protects statements made by someone with a social, moral or legal duty or interest to tell someone something, and they have a corresponding interest in receiving it. For example, a person who phones the police to tell them the neighbour is selling drugs will not be held liable for defamation if the accusation turns out to be wrong, as long as it was made in good faith.

But can this common law defence be used by the media (or someone else) for a story that’s published to a wide audience?

Only sometimes. The courts have stretched this defence to include speech about the character and conduct of politicians in the course of genuine political discussion. The idea is speech that directly concerns the functioning of representative government is so important that the law shouldn’t discourage it by allowing politicians to sue for defamation. It may be expanded to include stories about other significant figures, such as senior civil servants, business and union leaders and prominent journalists.

However, this protection doesn’t apply to stories about their private lives, unless the stories tell us something about the way politicians discharge their public duties. For example, it is probably legitimate to report that a politician who advocates family or religious values is having an affair.

The defence will excuse factual errors about these people that are defamatory, but only if the journalist has behaved “responsibly” in publishing the story. It’s not entirely clear what “responsibly” means. Generally, the more serious the allegation and the more widespread its publication, the more care needs to be taken. So, for example, a publication with a small circulation that accuses an MP of getting a parking ticket will not have to check the story as thoroughly as a major national television channel claiming an MP has accepted a bribe.

The courts will look at factors such as:

most importantly, did the publisher get and report the other side?

did the publisher rely on biased or unreliable sources?

did the publisher overlook obvious sources?

did the publisher overhype the story?

If the court finds the publisher didn’t act responsibly, this defence will be lost.

What if someone unfairly attacks my reputation? Can I respond in kind?

Another form of privilege allows a person to respond to a defamatory attack on them, even if the response itself contains defamatory material, as long as it’s relevant to the attack. If the original attack was widely circulated, this defence will also protect the media when they publish the person’s response to the same audience.

What are the remedies for defamation?

The usual remedy is an award of damages. However, damages awards have not usually been large in New Zealand. A moderately severe defamation published to a wide audience would probably be worth about $50,000 to $70,000. There have been few defamation awards over $100,000.

How are damages measured?

They are a combination of two things. First, whatever financial loss the plaintiff can show is directly attributable to the defamation. Second, “general damages” compensate for the harm to the plaintiff’s reputation. The plaintiff does not have to prove this harm – it is presumed when the defamation is proved.

Are injunctions available?

Yes, but courts are reluctant to award them up front if the defendant asserts that a defence is available. A court will only grant an injunction restraining defamatory material if convinced that there is no tenable defence.